Citation Nr: 0918339
Decision Date: 05/15/09 Archive Date: 05/21/09
DOCKET NO. 07-39 787 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence to reopen a claim for
service connection for bilateral hearing loss has been
received; and if so, whether service connection for that
disability is warranted.
2. Whether new and material evidence to reopen a claim for
service connection for tinnitus has been received; and if so,
whether service connection for that disability is warranted.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. A. Rein, Counsel
INTRODUCTION
The Veteran had active military service from October 1966 to
July 1969.
These matters come to the Board of Veterans' Appeals (Board)
on appeal from a rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St. Petersburg,
Florida.
In January 2009, the Veteran testified during a hearing
before the undersigned Veterans Law Judge at the RO; a
transcript of that hearing is of record. The record was held
open for sixty days for the submission of a private medical
opinion. No additional evidence has been received to date.
The Board notes that the Veteran had perfected an appeal for
an initial rating in excess of 30 percent for post-traumatic
stress disorder (PTSD), which was subsequently increased to
50 percent. However, during the January 2009 hearing, the
Veteran stated that he was satisfied with the 50 percent
rating for PTSD, and he had withdrawn his claim from further
appellate consideration (see transcript, p. 14).
Consequently, the matter of an initial higher rating for PTSD
has been withdrawn and is not on appeal before the Board. 38
C.F.R. § 20.204 (2008).
The Board's decision granting the Veteran's petition to
reopen each claim for service connection is set forth below.
The claims for service connection for bilateral hearing loss
and for tinnitus, on the merits, are being remanded to the RO
via the Appeals Management Center (AMC) in Washington, D.C.
VA will notify the Veteran when further action, on his part,
is required.
FINDINGS OF FACT
1. All notification and development action needed to fairly
adjudicate the petitions to reopen the claims for service
connection for bilateral hearing loss and for tinnitus has
been accomplished.
2. In January 1999, the RO denied service connection for
bilateral hearing loss and tinnitus. Although notified of the
denial later that same month, the Veteran did not initiate an
appeal.
3. Additional evidence associated with the claims file since
the RO's January 1999 denial includes evidence that was not
previously before agency decision makers that is not
cumulative or duplicative of other evidence of record, and
relates to an unestablished fact that, when considered with
all the evidence of record, raises a reasonable possibility
of substantiating each of the claims for service connection
for bilateral hearing loss and for tinnitus.
CONCLUSIONS OF LAW
1. The RO's January 1999 rating decision denying service
connection for bilateral hearing loss and for tinnitus is
final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104,
20.302, 20.1103 (2008).
2. As evidence received since the RO's January 1999 denial is
new and material, the criteria for reopening the claim for
service connection for bilateral hearing loss are met. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (c) (2008).
3. As evidence received since the RO's January 1999 denial
is new and material, the criteria for reopening the claim for
service connection for tinnitus are met. 38 U.S.C.A. § 5108
(West 2002); 38 C.F.R. § 3.156 (c) (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38
U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2008)) includes enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA have been codified, as amended at 38
C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2007).
Given the Board's favorable disposition of the claims to
reopen, the Board finds that all notification and development
actions needed to fairly adjudicate this aspect of the appeal
have been accomplished.
II. New and Material Evidence
Service connection may be granted for disability resulting
from disease or injury incurred or aggravated during a
veteran's active service. 38 U.S.C.A. § 1110 (West 2002); 38
C.F.R. § 3.303 (2008).
Under the provisions of 38 C.F.R. § 3.385, impaired hearing
is considered a disability for VA purposes when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz is 40 decibels or greater; the
thresholds for at least three of these frequencies are 26 or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent.
In a January 1999 rating decision, the RO denied service
connection for bilateral hearing loss and for tinnitus. The
pertinent evidence of record then consisted of the Veteran's
service treatment records (STRs), which included the
Veteran's entrance examination showing he had hearing loss in
each ear and that he was assigned an H-2 profile. During
service the Veteran was treated on several occasions for
complaints of aches and pain in each ear and was assessed
with otitis media and otitis external. The separation
examination report did not provide audiometric findings or
indication of the extent of the Veteran's hearing loss at
that time. The RO denied the claim for tinnitus on the basis
that the Veteran's STRs did not show any complaints,
findings, or diagnosis of ringing in the ears (tinnitus).
The RO denied the claim for bilateral hearing loss on the
basis that there was no evidence showing the Veteran
currently had bilateral hearing loss for VA purposes. The RO
also noted that STRs did not show a complaint of, treatment
for, or diagnosis of hearing loss.
The Veteran sought to reopen his claims for service
connection for bilateral hearing loss and for tinnitus in
July 2005. Under pertinent legal authority, VA may reopen
and review a claim, which has been previously denied if new
and material evidence is submitted by or on behalf of the
Veteran. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); see also
Hodge v. West, 155 F.3rd 1356 (Fed. Cir. 1998).
Regarding petitions to reopen filed on or after August 29,
2001, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence
not previously submitted to agency decision makers and
"material" evidence as evidence that, by itself or when
considered with previous evidence of record, relates to an
unestablished fact necessary to substantiate the claim. New
and material evidence can be neither cumulative nor redundant
of the evidence of record at the time of the last final
denial of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim. 38
C.F.R. § 3.156(a) (2008).
In determining whether new and material evidence has been
received, VA must initially decide whether evidence
associated with the claims file since the prior final denial
is, in fact, new. As indicated by the regulation cited
above, and by judicial case law, "new" evidence is that which
was not of record at the time of the last final disallowance
(on any basis) of the claim, and is not "merely cumulative"
of other evidence that was then of record. This analysis is
undertaken by comparing newly received evidence with the
evidence previously of record. After evidence is determined
to be new, the next question is whether it is material.
The provisions of 38 U.S.C.A. § 5108 require a review of all
evidence submitted by or on behalf of a claimant since the
last final denial on any basis to determine whether a claim
must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3
(1996). Furthermore, for purposes of the "new and material"
analysis, the credibility of the evidence is presumed.
Justus v. Principi, 3 Vet. App. 510, 512-513 (1992).
Since the January 1999 rating decision, the Veteran has
submitted VA treatment records noting his complaints of
bilateral hearing loss and tinnitus. The Board notes that in
an October 2000 VA audiology record, the Veteran was
diagnosed with right ear hearing loss, within normal limits
from 250 to 3 KHz, sloping to a moderate-severe hearing loss
from 4 to 8 KHz, and with slight to severe hearing loss in
the left ear, from 250 to 8 KHz. It was also noted that the
Veteran complained of tinnitus in both ears, with the left
ear being louder.
The Veteran has submitted various statements asserting that
while in Vietnam, he was stationed at Long Binh and was very
near an ammo base that exploded, which he asserts resulted in
his current bilateral hearing loss and tinnitus.
A September 2007 deferred rating decision reflects that the
RO verified that the Veteran's unit was stationed at Long
Binh when the ammo explosion occurred.
In a November 2007 VA examination report, the examiner noted
that the Veteran reported being exposed to artillery fire and
explosions, to include an ammo dump explosion in service.
The Veteran denied non-military noise exposure. He also
reported a constant ringing in both ears since service. The
examiner found that the Veteran's STRs showed he had a pre-
existing hearing loss at 4 KHz in both ears, but no
audiometric evaluation performed at the time of separation.
The VA examiner concluded that since there was no discharge
evaluation, any opinion regarding the aggravation of the
Veteran's pre-existing hearing loss would be based on
speculation. In addition, an opinion regarding tinnitus
would also be based on speculation as it may have been caused
by the Veteran's pre-existing hearing loss, any head injuries
he may have incurred, and/or any noise exposure he may have
been exposed to.
In a December 2007 rating decision, the RO granted service
connection for PTSD, noting that the Veteran's claimed
stressor was conceded (in part, from being overrun by the
enemy in Vietnam and being near the ammo dump explosion).
During the January 2009 Board hearing, the Veteran testified
that he was exposed to acoustic trauma from the ammo dump
explosion and artillery shells and that he believed his
bilateral hearing loss and tinnitus were a result of his in-
service noise exposure. He stated that he was not provided
with any hearing protection during service. He also
testified that he first sought treatment for his hearing at
the VA hospital in Dallas in 1970, but these records appeared
unavailable. In regards to post-service noise exposure, the
Veteran testified that he worked as a florist for forty
years, and has not had any extra-curricular activities that
would have exposed him to additional acoustic trauma.
During the hearing, the Veteran's submitted a letter from his
mother in which she stated that the Veteran complained of
loud ringing in his ears ever since he came back from
Vietnam.
The Board finds that the additional evidence has not
previously been considered by agency adjudicators, and is not
cumulative or redundant of evidence previously of record,
they are "new." Moreover, as one of the reasons the Veteran
was previously denied service connection for hearing loss was
because it was not found severe enough to constitute a
disability for VA purposes, and given the nature of the
evidence identified above, the Board also finds these records
relate to an unestablished fact that is necessary to
substantiate each of the claims, and provides a reasonable
possibility of substantiating the claims. Accordingly, new
and material evidence has been submitted to reopen the claims
of service connection for bilateral hearing loss and for
tinnitus.
ORDER
To the limited extent that new and material evidence to
reopen the claims for service connection for bilateral
hearing loss and for tinnitus has been received, the appeal
is granted.
REMAND
The Board finds that further RO action is needed before the
claims for service connection for bilateral hearing loss and
for tinnitus are adjudicated on the merits.
Service connection may be granted for a disability resulting
from a disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303
(2008). Service connection may be granted for any disease
diagnosed after discharge from service when all the evidence,
including that pertinent to service, establishes that the
disease was incurred in service. 38 C.F.R. § 3.303(d).
For purposes of applying the laws administered by VA,
impaired hearing will be considered to be a disability when
the auditory threshold in any of the frequencies 500, 1000,
3000, 4000, Hertz is 40 decibels or greater; or when the
auditory thresholds for at least three of the frequencies
500, 1000, 2000, 3000 and 4000 Hertz are 26 decibels or
greater; or when speech recognition scores using the Maryland
CNC test are less than 94 percent. 38 C.F.R. § 3.385 (2008).
Every person employed in the active military, naval, or air
service shall be taken to have been in sound condition when
examined, accepted and enrolled for service, except as to
defects, infirmities, or disorders noted at the time of the
examination, acceptance and enrollment, or where clear and
unmistakable evidence demonstrates that the injury or disease
existed before acceptance and enrollment and was not
aggravated by such service. See 38 U.S.C.A. § 1111.
In July 2003, the VA General Counsel issued a precedent
opinion holding that to rebut the presumption of soundness in
38 U.S.C.A. § 1111, VA must show by clear and unmistakable
evidence both that the disease or injury existed prior to
service and that the disease or injury was not aggravated by
service. See VAOPGCPREC 3-2003 (July 16, 2003). The
claimant is not required to show that the disease or injury
increased in severity during service before VA's duty under
the second prong of this rebuttal standard attaches. Id. See
also Wagner v. Principi, 370 F. 3d 1089 (Fed. Cir. 2004).
Generally, a pre-existing injury or disease will be
considered to have been aggravated by active service where
there is an increase in disability during such service,
unless there is a specific finding that the increase in
disability was due to the natural progress of the disease.
See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306(a)
(2008). The underlying disorder, as opposed to the symptoms,
must be shown to have worsened in order to find aggravation.
See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
The Veteran contends that his bilateral hearing loss and
tinnitus are the result of acoustic trauma from his close
proximity to an ammo dump explosion and from exposure to
constant artillery fire, all without any hearing protection
during his military service in the Republic of Vietnam. The
Board notes that RO has conceded that the Veteran was exposed
to the ammo dump explosion in service; therefore, the Board
accepts as credible the Veteran's assertion of noise exposure
in service.
On service entrance examination in October 1966, audiometric
testing revealed pure tone thresholds, in decibels, as
follows (American Standards Association (ASA) units are
converted to International Standards Organization (ISO)
units):
HERTZ
500
1000
2000
3000
4000
RIGHT
20
10
5
5
40
LEFT
20
15
15
25
50
The examiner summarized the Veteran's physical defects as
hearing loss not considered disabling, and provided a
physical profile of H-2, defective hearing. On
contemporaneous self-report the Veteran denied hearing loss
and ear, nose or throat trouble.
As noted above, STRs reflect complaints of ear pain and aches
for which he received treatment and was diagnosed with otitis
media and otitis external. However, the Veteran's separation
examination report did not provide audiometric testing
results. A November 2007 VA examination report reflects that
the examiner found that the Veteran's STRs showed he had a
pre-existing hearing loss at 4 KHz in both ears. The
foregoing clearly and unmistakably demonstrates that the
Veteran's defective hearing pre-existed service. However,
the VA examiner concluded that without audiometric results
upon separation from service, to link the Veteran's current
bilateral hearing loss to aggravation in service and to
relate tinnitus to service would require him to resort to
speculation.
The Board points out that the absence of documentation
showing hearing loss in service does not preclude a claimant
from establishing entitlement to service connection where
medical evidence nonetheless indicates that hearing loss is
associated with service. See Ledford v. Derwinski, 3 Vet.
App. 87, 89 (1992); Hensley v. Brown, 5 Vet. App. 155, 158
(1993) (where the Court held that, even though disabling
hearing loss may not be demonstrated at separation, a Veteran
may nevertheless establish service connection for a current
hearing loss disability by submitting evidence that the
current disability is related to service).
Thus, as new evidence submitted consists of corroboration of
the Veteran's exposure to acoustic trauma in service, the
Veteran's testimony as to no post-service noise exposure, and
his mother's statements that the Veteran complained of
tinnitus since his discharge from service, the Board finds
that the medical evidence currently of record is
insufficient, and an additional VA medical opinion- based on
review of the Veteran's documented medical history and
assertions, and supported by stated evidentiary and/or
medical rationale-is needed to resolve the question as to
whether the Veteran's pre-existing bilateral hearing loss was
aggravated in service and whether tinnitus is related to
service in this appeal. See 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The Board also finds that the RO has not properly informed
the Veteran of the information and evidence needed to
establish service connection for a pre-existing condition or
due to aggravation of a pre-existing disorder beyond its
natural progression pursuant to Wagner, supra. Action by the
RO is required to satisfy the notification provisions of the
VCAA. See Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).
Hence, the RO should, via VCAA-compliant notice, give the
Veteran another opportunity to provide information and/or
evidence pertinent to the claim on appeal, explaining that he
has a full one-year period for response. See 38 U.S.C.A. §
5103 (b)(1)(West 2002); but see also 38 U.S.C.A. §
5103(b)(3)) (West Supp. 2008) (amending the relevant statute
to clarify that VA may make a decision on a claim before the
expiration of the one-year notice period). The RO should
ensure that its notice to the Veteran meets the requirements
of the recent decisions in Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006) (as regards the five elements of a claim
for service connection-particularly, disability ratings and
effective dates).
Accordingly, these matters are REMANDED for the following
action:
1. The RO should, through VCAA-compliant
notice, furnish to the Veteran and his
representative a letter requesting that
the Veteran provide information, and, if
necessary, authorization, to enable it to
obtain any additional evidence pertinent
to the claims for service connection for
bilateral hearing loss and for tinnitus
on appeal.
The RO should provide specific notice
that should inform the appellant of the
information and evidence needed to
establish service connection for a pre-
existing condition or due to aggravation
of a pre-existing disorder beyond its
natural progression pursuant to Wagner
(cited to above). The RO should also
ensure that its notice to him meets the
requirements of Dingess/Hartman (cited to
above), particularly as regards
assignment of disability ratings and
effective dates, as appropriate.
The RO's letter should clearly explain to
the appellant that he has a full one-year
period to respond (although VA may decide
the claim within the one-year period).
2. Thereafter, the Veteran should be
scheduled for appropriate VA
examinations, i.e. ear disease and
audiology, to be performed by an
appropriate physician, and an
audiologist, to determine the etiology of
any bilateral hearing loss. All
indicated tests should be accomplished,
and all clinical findings reported in
detail.
The entire claims file, to include a
complete copy of the REMAND, must be made
available to the examiner(s) designated
to render the requested medical opinions,
and the medical opinions should include
discussion of the Veteran's documented
medical history and assertions.
Audiometry and speech discrimination
testing, for each ear, should be
accomplished. Based on these results,
the examiner(s) should specifically
indicate, with respect to each ear,
whether the Veteran currently has hearing
loss to an extent recognized as a
disability for VA purposes. In addition,
the examiner(s) should indicate whether
the Veteran has tinnitus.
The examiner(s) should prepare an opinion
addressing whether the Veteran's current
bilateral hearing loss is at least as
likely as not (i.e., there is a 50
percent or more probability) the result
of aggravation (permanent worsening) of a
pre-existing condition during the
Veteran's military service. The
examiner(s) is also requested to provide
an opinion concerning the etiology of any
tinnitus found to be present, to include
whether it is at least as likely as not
(i.e., a 50 percent or greater
probability) that any currently diagnosed
tinnitus was caused by military service.
In rendering the requested opinion, the
examiner(s) should consider and discuss
the hearing defects found in the
Veteran's October 1966 entrance
examination audiogram, the complaints and
findings in service, and the VA
examiner's prior opinions from November
2007.
The examiner(s) should set forth all
examination findings, together with the
complete rationale for all conclusions
reached.
3. Thereafter, the RO should
readjudicate the Veteran's claims for
service connection for bilateral hearing
loss and for tinnitus, on the merits.
The RO's adjudication of the claim for
service connection for bilateral hearing
loss should include specific
consideration of 38 U.S.C.A. §§ 1111,
1153 and Wagner (cited to above).
4. If any benefit sought on appeal
remains denied, the Veteran should be
provided with a SSOC. The SSOC should
contain notice of all relevant actions
taken on the claim, to include a summary
of the evidence and applicable law and
regulations considered pertinent to the
issues currently on appeal, An
appropriate period of time should be
allowed for response before the claims
file is returned to the Board for further
appellate consideration.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
N. R. Robin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs